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High Court rules media are liable for Facebook comments on their stories. Here’s what that …

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A publisher can be held responsible for defamatory comments readers leave on its Facebook pages, the High Court ruled today, in a decision that could have far-reaching consequences for social media users throughout Australia.

This decision may mean anyone who runs a social media page can theoretically be sued over disparaging comments posted by readers or random group members — even if you aren’t aware of the comment.

In other words, if you post content on your social media page and encourage or invite comments — and people post defamatory comments there — you’re legally the “publisher” of those comments and can be sued, thanks to today’s ruling.

Today’s case focused on Facebook but the implications are not Facebook-specific. It can apply equally to Twitter, Instagram, and other social media too — or websites (such as The Conversation) that have comments sections.

Facebook and Instagram page administrators can turn off comments altogether, and Twitter allows you to restrict comments so only certain people can post to it.

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Today’s ruling may inspire many social media account managers to make greater use of these features and tightly restrict comments — or, where possible, switch them off completely.




Read more:
Media companies can now be held responsible for your dodgy comments on social media


Former Don Dale inmate Dylan Voller and the comments

Today’s case centres on former Don Dale Youth Detention Centre inmate Dylan Voller, who you might remember as the young man wearing the spit hood in a Four Corners report on conditions in the Northern Territory juvenile justice system.

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Three media companies published stories about Voller to their Facebook page, and readers left comments underneath those posts. The media stories themselves were not defamatory but Voller alleged some of those reader comments were, so he sued.

But he didn’t sue the commenters; he sued the media outlets who ran the Facebook pages, arguing they were “publishers” of the comments. Today’s case centred on whether or not the media companies could be defined as “publishers” of comments by readers and other “third party users”.

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Former Don Dale detainee Dylan Voller speaks to the media during a press conference in Canberra
Former Don Dale detainee Dylan Voller alleged that reader comments posted on the Facebook pages of three media outlets were defamatory.
LUKAS COCH/AAP

In 2019, the Supreme Court of New South Wales ruled in Voller’s favour. Justice Rothman held the media companies were indeed “publishers” of the comments from third-party users and were therefore responsible for them.

The media companies appealed, but last year the New South Wales Court of Appeal found again in Voller’s favour. In other words, the Court of Appeal agreed the media outlets were “publishers” of comments by random readers on their Facebook pages.

The decision sent shockwaves through the Australian media, which field countless comments on their social media pages every day. The media publishers appealed to the High Court, which brings us to today. The High Court decided:

The Court of Appeal was correct to hold that the acts of the appellants in
facilitating, encouraging and thereby assisting the posting of comments by the
third-party Facebook users rendered them publishers of those comments. The appeals should be dismissed with costs.

Five judges ruled in favour of Voller and two dissented (Justice Steward and Justice Edelman). Essentially, Voller won today, the media companies are indeed “publishers” and the media companies have to pay his legal costs.

Today’s ruling doesn’t mark the end of the line for this case.

Now it’s been established the media companies are publishers of the comments, Voller’s defamation case can start in earnest — in other words, it’s still yet to be decided whether or not the comments were in fact defamatory and what defences the media publishers might have under defamation law.

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You might be wondering: can the person who posted the comment also be held responsible for their comment, under defamation law?

The answer is yes, they can. But from the perspective of someone suing, it might not be worth going after an individual social media user or a troll, especially if they are using a pseudonym. A plaintiff is more likely to want to go after the media company itself as the publisher, with their deeper pockets.

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The question at the centre of this case was: can a publisher be held responsible for comments left on their Facebook page?
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Broader implications for social media users

Today’s ruling may mean if you post something to a social media platform and encourage or invite third party comments, you could be liable for any comments that follow. So it could affect individuals, online community groups, neighbourhood Facebook pages, the local P&C Facebook page, and so on.

One of the interesting things about the Voller case is his legal team sued straight away — they didn’t issue a concerns notice first (which is basically a legal letter sent to the person or organisation alleged to have made the defamatory comments, giving them a chance to respond).

That wouldn’t be allowed now. Under new defamation laws that came into effect this July in NSW, Victoria, South Australia Queensland and the ACT, plaintiffs must now serve a concerns notice on each defendant and wait at least a fortnight before suing.

Those same reforms also introduced what’s called a “serious harm threshold”. Under this rule, the plaintiff has to prove they have, in fact, suffered (or are likely to suffer) serious harm to their reputation as a result of the published comments.

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This clause aims to rule out trivial defamation cases because while it’s true anyone can cause serious harm to a person’s reputation on social media, there is also a lot of banter and to-ing and fro-ing which might be offensive but might not cause serious harm to a reputation. This may give some protection to admins of social media pages in future, particularly private individuals.




Read more:
The policing of Australian satire: why defamation is still no joke, despite recent law changes


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Updating Special Ad Audiences for housing, employment, and credit advertisers

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On June 21, 2022 we announced an important settlement with the US Department of Housing and Urban Development (HUD) that will change the way we deliver housing ads to people residing in the US. Specifically, we are building into our ads system a method designed to make sure the audience that ends up seeing a housing ad more closely reflects the eligible targeted audience for that ad.

As part of this agreement, we will also be sunsetting Special Ad Audiences, a tool that lets advertisers expand their audiences for ad sets related to housing. We are choosing to sunset this for employment and credit ads as well. In 2019, in addition to eliminating certain targeting options for housing, employment and credit ads, we introduced Special Ad Audiences as an alternative to Lookalike Audiences. But the field of fairness in machine learning is a dynamic and evolving one, and Special Ad Audiences was an early way to address concerns. Now, our focus will move to new approaches to improve fairness, including the method previously announced.

What’s happening: We’re removing the ability to create Special Ad Audiences via Ads Manager beginning on August 25, 2022.

Beginning October 12th, 2022, we will pause any remaining ad sets that contain Special Ad Audiences. These ad sets may be restarted once advertisers have removed any and all Special Ad Audiences from those ad sets. We are providing a two month window between preventing new Special Ad Audiences and pausing existing Special Ad Audiences to enable advertisers the time to adjust budgets and strategies as needed.

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For more details, please visit our Newsroom post.

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Impact to Advertisers using Marketing API on September 13, 2022

For advertisers and partners using the API listed below, the blocking of new Special Ad Audience creation will present a breaking change on all versions. Beginning August 15, 2022, developers can start to implement the code changes, and will have until September 13, 2022, when the non-versioning change occurs and prior values are deprecated. Refer below to the list of impacted endpoints related to this deprecation:

For reading audience:

  • endpoint gr:get:AdAccount/customaudiences
  • field operation_status

For adset creation:

  • endpoint gr:post:AdAccount/adsets
  • field subtype

For adset editing:

  • endpoint gr:post:AdCampaign
  • field subtype

For custom audience creation:

  • endpoint gr:post:AdAccount/customaudiences
  • field subtype

For custom audience editing:

  • endpoint gr:post:CustomAudience

Please refer to the developer documentation for further details to support code implementation.

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Introducing an Update to the Data Protection Assessment

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Over the coming year, some apps with access to certain types of user data on our platforms will be required to complete the annual Data Protection Assessment. We have made a number of improvements to this process since our launch last year, when we introduced our first iteration of the assessment.

The updated Data Protection Assessment will include a new developer experience that is enhanced through streamlined communications, direct support, and clear status updates. Today, we’re sharing what you can expect from these new updates and how you can best prepare for completing this important privacy requirement if your app is within scope.

If your app is in scope for the Data Protection Assessment, and you’re an app admin, you’ll receive an email and a message in your app’s Alert Inbox when it’s time to complete the annual assessment. You and your team of experts will then have 60 calendar days to complete the assessment. We’ve built a new platform that enhances the user experience of completing the Data Protection Assessment. These updates to the platform are based on learnings over the past year from our partnership with the developer community. When completing the assessment, you can expect:

  • Streamlined communication: All communications and required actions will be through the My Apps page. You’ll be notified of pending communications requiring your response via your Alerts Inbox, email, and notifications in the My Apps page.

    Note: Other programs may still communicate with you through the App Contact Email.

  • Available support: Ability to engage with Meta teams via the Support tool to seek clarification on the questions within the Data Protection Assessment prior to submission and help with any requests for more info, or to resolve violations.

    Note: To access this feature, you will need to add the app and app admins to your Business Manager. Please refer to those links for step-by-step guides.

  • Clear status updates: Easy to understand status and timeline indicators throughout the process in the App Dashboard, App Settings, and My Apps page.
  • Straightforward reviewer follow-ups: Streamlined experience for any follow-ups from our reviewers, all via developers.facebook.com.

We’ve included a brief video that provides a walkthrough of the experience you’ll have with the Data Protection Assessment:

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We’re having trouble playing this video.

The Data Protection Assessment elevates the importance of data security and helps gain the trust of the billions of people who use our products and services around the world. That’s why we are committed to providing a seamless experience for our partners as you complete this important privacy requirement.

Here is what you can do now to prepare for the assessment:

  1. Make sure you are reachable: Update your developer or business account contact email and notification settings.
  2. Review the questions in the Data Protection Assessment and engage with your teams on how best to answer these questions. You may have to enlist the help of your legal and information security points of contact to answer some parts of the assessment.
  3. Review Meta Platform Terms and our Developer Policies.

We know that when people choose to share their data, we’re able to work with the developer community to safely deliver rich and relevant experiences that create value for people and businesses. It’s a privilege we share when people grant us access to their data, and it’s imperative that we protect that data in order to maintain and build upon their trust. This is why the Data Protection Assessment focuses on data use, data sharing and data security.

Data privacy is challenging and complex, and we’re dedicated to continuously improving the processes to safeguard user privacy on our platform. Thank you for partnering with us as we continue to build a safer, more sustainable platform.

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Resources for Completing App Store Data Practice Questionnaires for Apps That Include the Facebook or Audience Network SDK

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Resources for Completing App Store Data Practice Questionnaires for Apps That Include the Facebook or Audience Network SDK

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